Language in the Context of South African Workplace Discrimination Law




Language; culture; identity; language rights; unfair discrimination; harassment; justification; inherent requirements of the job defence; reasonable accommodation, Language, culture, identity, language rights, unfair discrimination, harassment, justification, inherent requirements of the job defence, reasonable accommodation


This contribution considers the role of language as a prohibited ground of unfair discrimination in the workplace in South Africa, an area of law that has been somewhat neglected in the literature to date. It starts by setting out the constitutional and legislative framework for the protection of language rights and the prohibition of unfair discrimination based on language as a listed ground. It then, with brief comparative reference to other prominent jurisdictions, explains the potential ways in which an employer may unfairly discriminate against employees based on language, following which it considers the potential grounds for justification of language-based discrimination in the workplace. After consideration of the sparse case law on the topic in South Africa, it highlights a few specific issues regarding language and workplace discrimination, before concluding with some thoughts on potential future developments.


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Espinoza v Coldmatic Refrigeration of Canada Inc et al (Ont Bd of Inq) (unreported) inquiry file number 93-0043 and decision 95-013 of 31 March 1995

South Africa

AfriForum v University of the Free State 2018 2 SA 185 (CC)

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Jansen van Vuuren v SA Airways (Pty) Ltd 2013 34 ILJ 1749 (LC)

Khumalo v Holomisa 2002 5 SA 401 (CC)

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Racial Discrimination Act, 1975

New Zealand

Human Rights Act, 1993

South Africa

Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Labour Relations Act 66 of 1995

National Credit Act 34 of 2005

Pan South African Language Board Act 59 of 1995

Pan South African Language Board Amendment Act 10 of 1999

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Use of Official Languages Act 12 of 2012

United Kingdom

Equality Act, 2010

Immigration Act, 2016

United States of America

Americans with Disabilities Act, 1990 (42 USC § 12101)

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GN R425 in GG 35398 of 1 June 2012 (Civil Aviation Regulations, 2011)

GN 111 in GG 38487 of 19 February 2015 (Revised Policy for the Minimum Requirements for Teacher Education Qualifications)

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Britannica date unknown Language accessed 9 September 2021

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How to Cite

Louw, A. (2022). Language in the Context of South African Workplace Discrimination Law. Potchefstroom Electronic Law Journal, 25, (Published 25 January 2022) pp 1–38.




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